1.1 The scope of the services covered by this agreement is limited to the following:
1. Hosting – The renting of server space for the hosting of Directus CMS or other agreed upon services.
1.2. This TOS, together with the SLA, represent the entire agreement relating to the Services and supersedes any agreements previously entered into between you and Captaintech. In the event where Captaintech has taken over or inherited management of the service from another party, all previous terms and conditions are void and superseded by this agreement. Any other contract provisions presented by you are expressly rejected.
1.3. The current TOS is always available on Captaintech’s website. We may alter this TOS at any time with notification by posting the updated agreement on our website and where we deem it significant we will notify you directly via email. If you do not agree to any changes, you must terminate your contract within ten business days of the date of the change. Only a Captaintech administrator may alter this TOS. No agent of, or person employed by, or under contract with, Captaintech has any authority to alter or vary this TOS. No oral explanation or oral information given by any party shall alter the interpretation of this TOS.
1.4. In this TOS we mention certain legal rights you have if you are a consumer. This TOS does not affect or change these legal rights.
1.5 Unless alternative pricing and provision of service has been stated by us in writing to You, then You agree to all pricing and features of your chosen service as provided to you on the date you accept this agreement.
2.1 You must be a minimum age of 18 to register on and use the Service. By registering and using the Service you warrant that you are 18 or older and understand your obligations under this TOS & SLA.
2.2 The business entering into the agreement must be a verifiable legally registered business/company entity. Where we are unable to verify an entity, we reserve the right to refuse service. Entities outside of Australia may purchase our services subject to Paragraph 2.4 below.
2.3 As the individual accepting the agreement, you confirm that you have authority to act for the business/company identified as the entity receiving the service, subject to Paragraph 5.3 of this TOS.
2.4 Any pricing displayed on our website or any other form is intended for Australian Businesses only. The Prices do not include GST (Goods & Services Tax) 10%, and is in Australian Dollars. Our pricing is also based on the cost of Hosting Servers located in Australia. For non-Australian entities, we recommend contacting us to discuss a customised service and pricing prior to agreeing to this TOS & SLA. Your eligibility requires You to agree to all aspects of this TOS & SLA, subject to Paragraph 1.5 above.
2.5 We will review all Orders to determine if they meet our financial, security and other reasonable criteria (Fraud Screen). We might ask you for additional information before we can process your Order. You may receive notice that your Order has been rejected because it fails to pass our Fraud Screen. We are unable to provide additional information about the reasons a particular Order fails to pass the Fraud Screen. Orders that fail our Fraud Screen will not be accepted and Service will not be provided. We have no liability for Orders that are not processed because they have failed our Fraud Screen.
3.1. You will conform to the standards and acceptable use policies of Captaintech which are set out in our policies.
3.2. You are responsible for obtaining any licences or permissions from any third party which are required to upload content to the Services.
3.3. Your personal information is treated in accordance with our Privacy Policy.
3.4. You may receive passwords as part of the service provided. You are solely responsible for all passwords. You must keep all passwords confidential and take security measures to prevent any person from gaining access to them.
3.5. Captaintech’s Service Level Agreement in Section A (SLA) sets out the performance you can expect from us. The SLA is your sole and exclusive remedy for Service disruptions covered by it unless you are a consumer in which case you have certain rights under the law if we fail to provide the Services to you.
3.6. Certain aspects of the Services will only be licensed to you. These aspects may only be used by you while using the Services, and may not be transferred. Upon Termination of this TOS, or a particular Service, this licence will end.
3.7. The Services are provided to you as configured for our standard customer. We may update or upgrade the Services and/or any software installed on your account at any time without prior notification to you. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your hardware, software and any other items you deem necessary to use the Services must be compatible with the Services. We are not obligated to modify the Services to accommodate your use.
3.8. To the maximum extent applicable under national law and without affecting your rights as a consumer, the Services are provided on an as-is basis. The hardware configurations may vary. Captaintech may replace your host server hardware, transfer it from one datacenter to another, transfer your account to another server or modify certain software configurations when deemed necessary by Captaintech. These different configurations may result in slightly different performance.
3.9. The proprietary and third-party software we offer as part of the Service is provided as-is and is subject to all warranty disclaimers and limitations of liability set out herein. This software may have terms and conditions that are in addition to those set out in this TOS. By agreeing to this TOS you are also agreeing to the TOS of our third-party providers. If you fail to do so, your ability to use the Service may be affected. Terms and conditions incorporated by reference are listed in the respective sections of this TOS.
3.10. We will use good faith efforts to backup the data stored on the server. As part of your agreement we may also provide a secondary specific backup service of your website. Regardless of website or server backups you agree that you cannot hold Captaintech for the loss of any data held on the servers they resell. See SECTION G – BACKUP SERVICES, of the SLA below.
3.11. The server may run software designed to filter unwanted email. Depending on the services set out in your order, email filtering may be activated by default; in other cases, it may be an additional service which we reserve the right to charge for. Email filtering will likely result in the capture of some legitimate email and the failure to capture some unwanted email that may contain spam, phishing scams and viruses. Email that is captured by our filtering system is not subject to our SLA.
4.1 Each Order for Services by you shall be deemed to be an offer by you to buy the Services from us subject to this TOS. No Order shall be deemed to be accepted by us until we provision your account. The date on which we provide notice to you that the account is provisioned is the Effective Date of this Agreement. The Initial Term of the Services is set out in your Order (Initial Term). Upon the expiration of the Initial Term, we shall renew your services as described in our Renewal Policy.
4.2 Certain features available to services paid for annually may not be available to services paid for monthly.
4.3 We reserve the right to change displayed or promoted pricing, plans and the features offered at any time and without notice to you. Captaintech is only obligated to guarantee pricing for the duration of the currently paid service term.
4.4 We are under no obligation to deliver any Services other than those identified in the Order.
5.1. If you, on behalf of another person or entity, create an account, you warrant that you will administer the account in good faith, and will indemnify us against all losses and liabilities sustained by us should you administer the account in ways that are adverse to the End User and result in any claim against us.
5.2. For the avoidance of doubt, the individual or entity set out in the Account Owner Information ‘Profile’ section of the User Area is considered by us to be the owner of the account and all associated services (Account Owner). If you are the Account Owner and are administering the account on behalf of a third party, you agree to administer this account in their best interests and indemnify us, pursuant to paragraph 11.2, should an individual or entity claim that they own the account or its content, or that your administration has not, or is not, in their interest. Domain names are owned as set out in applicable rules. If you purchase a domain name on behalf of a third party, and a dispute arises regarding your administration of that domain name, you agree to pay all registration fees during the time the dispute is pending.
The individual or entity paying for the Services may not be considered to be the owner of the account. It is your obligation to ensure that you correctly indicate ownership of your account. If there is a dispute about ownership, the account may be locked until the parties to the dispute agree on a resolution, or until the matter is resolved judicially.
5.3. You are responsible for providing valid contact information and keeping your contact details up to date. If you fail to do so, Captaintech accepts no liability in the event that it grants access to the account or gives ownership of the account to another person. You also accept that by not providing us with current contact information, that your account may be suspended or cancelled in the event that we are unable to send you information about renewal of your subscription.
6.1 All service contracts are for a monthly, annual period or other period approved by Captaintech and commence from when the account is created.
6.2 All services are billed monthly, annually or other billing cycle as approved by Captaintech in advance of the service being provided. Each subsequent payment will be billed up to 14 days prior to the anniversary of your initial billing date as determined by the billing cycle of the plan you have chosen.
6.3 Monthly Billing cycles are only available if a valid Credit Card is Given. Annual Subscriptions can be requested by Direct Bank Transfer provided the entity is a verifiable Australia business or company. All payments must be made in Australian Dollars.
6.4 Upgrades to a service attracting a higher cost than the currently contracted service will take effect immediately and a billing adjustment will be made on a pro-rata basis. Ie. if you switch halfway through your billing period you will be charged the difference between the 2 services for the remaining time of your billing period.
6.5 You may downgrade to a less expensive service, but this will not take effect until your current billing period has expired. It is a condition of use that a valid debit or credit card is provided at all times in order for a monthly service to remain active.
6.6 Where a credit or debit card payment request is made by us and is declined by your card company or bank (for whatever reason) access to your account or accounts may be suspended immediately until such time as a valid payment has been processed and a valid credit or debit card is associated with your account or accounts.
6.7 Where required by Australian Law, we will indicate that Goods & Services Tax (GST) is applicable. Upon each successful payment, you will receive a Tax Receipt which will include a statement that GST 10% has been charged and will also include our Australian Business Number. By agreeing to our TOS you accept that we have met our legal obligation under Australian Taxation Law for providing Tax Invoices. The provision of any receipt/invoice other than those automatically generated by our software will incur a fee. The amount of this fee is at our discretion.
6.8. If you believe there is an error on your bill, you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. If you contact your credit card company, prior to notifying us of a dispute, and initiate a “chargeback” based on this dispute, we will charge you for investigation and processing. This compensates us for the investigation your card issuer requires us to conduct in order to demonstrate our right to payment. All of your Services may be suspended during bill disputes. To reactivate your Services, you must first pay all outstanding Fees.
7.1 You can request cancellation of your service at any time and we will automatically cancel your service at the end of your billing cycle. Access to the service will continue until this time.
7.2 If after advising us of your wish to cancel your subscription, you change your mind, and your billing cycle has not expired, then you can advise us in writing.
7.3 After cancelling your service and your billing cycle expires, then you will no longer be able to access any services provided by Captaintech.
7.4 It is important to understand that certain Services may be bundled together. As a result, cancellation of the Services that provide hosting (Hosting Account) may result in immediate termination of multiple aspects of the Services. It is your obligation to ensure that you arrange to transfer anything you need from the Services prior to cancellation. We have no obligation to forward email following a cancellation.
7.5 In the event that you have not advised us of your desire to cancel your service, all associated services will be unavailable and can be deleted by us. This in no way guarantees that the services will remain active during the expiry date of your service and period of 14 days after expiry.
7.6 As soon as a subscription renewal payment becomes overdue, Captaintech may suspend the service at their discretion. We will advise you of suspension by sending an email to the contact address that is stored in our system.
7.7 Any service renewal payment which is more than 14 days overdue will automatically be cancelled and all services will be treated as cancelled by you as detailed in 7.3, 7.4 & 7.5 above.
8.1 We offer a refund during the initial 30 Days of annual hosting service subscriptions. as per Section B of the SLA below
9.1 We provide technical support through our email system. Our technical support is available only to registered users of our services and is provided on an as-is, as available basis. If your request for technical support exceeds that of similarly situated customers or is within the scope of our paid support and development services, we may charge you additional support fees. We will inform you, and receive your consent, prior to providing or charging you for technical support.
9.2 If you request technical support, you agree that we may have full access to all aspects of the Services accessible to us based on your request. You are solely responsible for any changes you make to your account after we complete your request.
9.3 To the maximum extent applicable under national law and without affecting your rights as a consumer, all support is provided as-is and is subject to the disclaimers of warranties and limitation of liability set out in this TOS. While we will use reasonable efforts to provide technical support to you and to perform any work you request in a timely and professional manner, we cannot guarantee the result you expect or that an issue might not occur again. We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive to our employees or contractors. We may refuse to perform any request that requires changes not compatible with the Services or is not related to them or might create a security risk or endanger technical performance.
9.4 Where technical issues arise through misuse of our services due to, but not limited to neglect, lack of knowledge, or malicious intent, Captaintech reserves the right to refuse to rectify the issues. If Captaintech agrees to rectify the issues we will charge a fee for this service.
9.5 Technical Support is limited to services relating to technical issues arising from hosting or related services such as email and domains. Requests for instruction or advice in relation to any aspect of the services we provide are provided on a paid consultation basis. Requests to perform updates to or the creation of content or functionality of any service we provide will be deemed as a request for paid services.
10.1. Captaintech retains ownership of all intellectual property rights in the Services it provides. Captaintech grants to you a limited licence to access and use the Services. All trademarks, product names and company names or logos used by Captaintech are Captaintech’s property or the property of their respective owners. No permission is given by Captaintech to you or an affiliate to use any such trademarks, product names, company names, logos or titles, and you acknowledge that such use is an infringement of the owner’s rights.
10.2. If we have not provided a licence for you to use software as part of the Services, you agree to procure appropriate licences to use all “Required Licences.” “Required Licences” means any licences, consents or approvals required to use software, hardware and other items whose use is facilitated by the Service. You agree to provide us with copies of the Required Licences promptly following our written request.
10.3. You are solely responsible for obtaining all intellectual property rights in the intellectual property of others, including, but not limited to, clearances and/or other consents and authorisations necessary to use the names, marks or other materials which are used by you in, or transmitted via, our service. On becoming aware of any dispute between you and any other individual or organisation regarding intellectual property, Captaintech reserves the right, at its sole discretion and without notice or liability to you, to cease any further use of the intellectual property including, without limitation, deleting or suspending them from its computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.
10.4. Unless otherwise set out in this TOS, you own all right, title and interest to the information you place on our servers pursuant to the Services. If you submit feedback to us in the form of trouble tickets or in another similar manner, we shall have the right to use that information to improve our business processes. You have no right to any intellectual property that is based on an improvement to our business based on this feedback.
11.1. You promise that (i) you have the experience and knowledge necessary to use the Services; (ii) you and your End Users understand and appreciate the risks inherent to you and your business that come from accessing the Internet; (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Services necessary to take advantage of them; (iv) you will not violate any applicable laws and/or regulations in your use of the Services; (v) you own all intellectual property rights in, or have a licence to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; (vi) you will make backup copies of all information in a location independent of ours, and will not use Backup Services as your sole backup; and (vi) you will pass through the terms of this TOS, and any agreements incorporated by reference, to your End Users.
11.2. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND WITHOUT AFFECTING YOUR RIGHTS AS A CONSUMER, WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) IS PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORISED TO MAKE ANY WARRANTY ON OUR BEHALF.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS TOS OR UNDER ANY OTHER AGREEMENT OR DOCUMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE THREE MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW AND YOUR RIGHTS AS A CONSUMER.
13.1. We shall compensate you fully and not counterclaim against you, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Services infringe any issued patent or registered copyright. This provision is expressly limited to aspects of the Services which are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Services we provide. This paragraph will be conditioned on your notifying us promptly in writing of the claim and giving us full authority, information, and assistance for the defence and settlement of that claim. You shall have the right to participate in the defence of the claim at your expense. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (i) procure for you the right to continue using the Services; (ii) replace an individual component of the Services with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Services, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to us for the Service, or the Fee actually received by us from you for the three month period immediately preceding the occurrence of the event on which the indemnification claim is based. This shall be your only remedy, and our only obligation to you, should a third party allege that the Services infringe any issued patent or registered copyright.
13.2. You agree to defend, compensate fully and not counterclaim against us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys’ fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to: (i) your use of the Services; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the term “you” as set out in subparagraphs (i) through (iv) includes you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.
14.1. Both you and Captaintech undertake not to disclose to a third party any confidential information which you or Captaintech receive relating to the contents or performance of this TOS, unless necessary for a party to perform their obligations under this TOS, the Services or the other party’s business in general, and shall procure that each of its directors and employees shall not do so, except with the prior consent in writing of the other party, as required by law, or to the extent to which that information is publicly available or already known to the receiving party at the date of receipt, other than through any unauthorised disclosure by any person.
14.2. Without prejudice to Paragraph 13.1., Captaintech shall be entitled to mention your name as a client of Captaintech and the name(s) of the Services which Captaintech provides to you with your prior consent.
14.3. If a law or regulation compels disclosure of information held by us, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the Account Owner. We are not required to respond to demands by you that we provide information about your account as part of litigation. However, if we agree to do so, we will charge you an administrative hourly fee for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.
15.1. Any notice to be given by either party to the other may be sent by email, support ticket, fax or recorded delivery if (i) to you, the Account Owner; or (ii) to us, as set out in paragraph 14.3. In addition, we may communicate with you using the Support ticketing system facilitated by our User Area. Notices of support tickets opened on your behalf are sent to you by email and shall be deemed received upon sending.
15.2. You are required to provide notices to us about the Services through email. We will provide notices to you using the information you provide to us in our system. We have no responsibility for misdirected notices based on your failure to provide correct information.
15.3. Termination notices must be provided to us as set out in paragraph 6.
15.4. Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows:
Email: igeorge@captaintech.com.au
16.1. Any dispute, controversy or claim arising under this TOS shall be resolved in accordance with the procedures set forth in this Section.
16.2. In the event of a dispute between the parties relating to this TOS, each of the parties shall appoint a designated representative who has authority to settle the dispute. This appointment will take place no later than five business days after the initial request for dispute resolution. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve the dispute. The specific format for such discussions will be left to the discretion of the designated representatives; however, all reasonable requests for relevant information made by one party to the other shall be honoured.
16.3. The parties agree that the courts of Australia shall have non-exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this TOS or any other document entered into by the parties. All disputes and other matters relating to the interpretation and enforcement of this TOS or any other document entered into by the parties shall be governed by the laws of Australia.
“Consumer” is an individual acting for purposes wholly or mainly outside of his or her trade, business, craft or profession;
“End User” is the individual or entity who uses, or to whom you provide, your services;
“ICANN” means the Internet Corporation for Assigned Names and Numbers;
“Materials” means any information, reports, documents, software or other materials created by Captaintech as part of the Services, including all methodologies, know-how and processes used to do so;
“Server” means the computer server equipment operated by Captaintech in connection with the provision of the Services;
“Service” or “Services” means any and all services provided by Captaintech under this TOS.
“Captaintech” means the legal entity delivering the Services to you as set out on 15.4 in this agreement.
“Server Space” means the area on the Server allocated to you by Captaintech for use by you as a site on the Internet;
“Service Period” means the prepaid period during which you receive Services from Captaintech;
“You” and “your” mean the person, firm or company who purchases Services from Captaintech.
18.1. If any provision of this TOS or part thereof shall be void for whatever reason, the offending words shall be deemed deleted, and the remaining provisions shall continue in full force and effect.
18.2. Your rights and obligations under this TOS are personal to you, and you shall not assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
18.3. Captaintech reserves the right to subcontract any of the work required to fulfil the Services and to assign this TOS.
18.4. Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labour disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event later than ten days from the beginning of the event.
18.5. Any delay or forbearance by either party in enforcing any provisions of this TOS or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
18.6. Paragraph headings have been included in this TOS for convenience only and shall not be considered part of, or be used in interpreting, this TOS.
18.7. This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
18.8 SURVIVAL. Paragraphs 12, 13, 14 (for a period of three years following Termination), 15, 16, 17, 18.1, 18.8, Section A (SLA) shall survive the termination of this TOS.